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`
`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US
`
`
`
`
`Service Information
`
`D.
`As identified in the attached Certificate of Service, a copy of the present
`
`petition, in its entirety, including all Exhibits and a power of attorney, is being
`
`served by EXPRESS MAIL® to the address of the attorney or agent of record for
`
`the owner of record of the ‘321 patent, Blue Origin LLC. SpaceX may be served
`
`at the lead counsel address provided in Section I.C. SpaceX consents to electronic
`
`service by e-mail at the e-mail addresses provided above, which include both
`
`individual e-mail addresses and a general docketing e-mail address.
`
`Power of Attorney
`
`E.
`Filed herewith in accordance with 37 C.F.R. § 42.10(b).
`
`II.
`
`PAYMENT OF FEES - 37 C.F.R. § 42.103
`
`This petition requests review of 13 claims of the ‘321 patent and is
`
`accompanied by a payment of $23,000 for 13 claims. See 37 C.F.R. § 42.15. This
`
`Petition therefore meets the fee requirements under 35 U.S.C. § 312(a)(1).
`
`III. REQUIREMENTS FOR INTER PARTES REVIEW UNDER 37 C.F.R. § 42.104
`A. Grounds for Standing under 37 C.F.R. § 42.104(a)
`Petitioner certifies that the ‘321 patent is eligible for inter partes review and
`
`that Petitioner is not barred or otherwise estopped from requesting inter partes
`
`review challenging the identified claims on the grounds identified herein.
`
`
`
`2
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`

`
`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US
`
`Decl.”), an expert with more than four decades of experience in spacecraft and
`
`
`
`launch vehicles. The specific grounds for IPR are identified in the following table:
`
`Ground
`No.
`1
`2
`3
`
`4
`5
`
`6
`
`7
`
`Proposed Ground for
`Claim(s)
`Inter Partes Review
`Affected
`Anticipated by Ishijima under 35 U.S.C. § 102(b)
`1-3
`8, 9, 12, 13 Obvious over Ishijima in view of Lane under § 103(a)
`4, 5
`Obvious over Ishijima in view of Mueller ‘653 under
`§ 103(a)
`Obvious over Ishijima in view of Kindem under § 103(a)
`Obvious over Ishijima in view of Spencer, further in view
`of Waters under § 103(a)
`Obvious over Ishijima in view of Lane, further in view of
`Waters under § 103(a)
`Obvious over Ishijima in view of Lane, further in view of
`Mueller ‘653 under § 103(a)
`
`6
`7
`
`11
`
`10
`
`As reflected in the chart above, this Petition relies on the base reference of
`
`Ishijima for anticipation of claims 1-3, and adds additional references as
`
`appropriate for limitations added by other claims challenged in this Petition. Each
`
`of the references relied upon above qualifies as prior art to the ‘321 patent under at
`
`least 35 U.S.C. § 102(b) (pre-AIA). A specific explanation of each of the grounds
`
`listed above is set forth in Part VII below.
`
`
`
`4
`
`

`
`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US
`
`
`
`
`C. Threshold for Inter Partes Review 37 C.F.R. § 42.108(c)
`The Board should institute inter partes review of claims 1-13 because this
`
`Petition establishes a reasonable likelihood of prevailing with respect to each
`
`challenged claim. See 35 U.S.C. § 314(a). Each limitation of each claim
`
`challenged herein is disclosed and/or suggested by the prior art, as explained
`
`below.
`
`IV. TECHNOLOGY BACKGROUND RELEVANT TO THE ‘321 PATENT
`The ‘321 patent, entitled “Sea Landing of Space Launch Vehicles and
`
`Associated Systems and Methods,” generally relates to a system for landing and
`
`recovering portions of a space launch vehicle on a platform at sea or in a body of
`
`water. (‘321 patent, Abstract.) The accompanying declaration of Dr. Kaplan
`
`describes the state of the art at the time of the alleged invention. (See Kaplan Decl.
`
`¶¶ 15-44.) This section provides an overview of that description.
`
`“Rocket Science”
`
`A.
`History changed on October 4, 1957 when the Soviet Union launched
`
`Sputnik 1, the first man-made satellite ever placed into orbit. This event sparked a
`
`“space race” between the United States and the Soviet Union, which culminated in
`
`the United States landing on the moon in 1969. (Lucy Rogers, It’s ONLY Rocket
`
`Science: An Introduction in Plain English (2008) [Ex. 1009], at 1.) The ensuing
`
`
`
`5
`
`

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`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US
`
`years witnessed an extraordinary number of scientific and
`
`
`
`technological
`
`breakthroughs for launching objects into space and bringing them back.
`
`These breakthroughs captured the public imagination and created a new
`
`vernacular, with terms like “rocket science,” referring to fields generally reserved
`
`for only the most intelligent. (Id.) But by 2009, the earliest possibly priority date
`
`listed on the face of the patent, the basic concepts of “rocket science” were well-
`
`known and widely understood. The “rocket science” claimed in the ‘321 patent
`
`was, at best, “old hat” by 2009. (Kaplan Decl. ¶ 19.)
`
`Launch Vehicles
`
`B.
`To understand the process for launching objects into space, one should be
`
`familiar with the concept of a “launch vehicle,” which is a device used to launch
`
`one or more other objects – known as the “payload” – into space. (Id. ¶ 20.)
`
`Examples of “payloads” include satellites, space probes, telescopes, equipment for
`
`research and experimentation, and manned or unmanned spacecraft (small vehicle,
`
`usually a capsule, that maneuvers in space). The launch vehicle typically includes
`
`one or more rocket engines that propel the launch vehicle and carry the payload
`
`into space. (See Ex. 1009 at 30.) As explained in the Background of the ‘321
`
`patent, “[r]ocket powered launch vehicles have been used for many years to carry
`
`human and non-human payloads into space.” (‘321 patent at 1:49-50.)
`
`
`
`6
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`

`
`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US
`
`
`
`
`C. Multistage Rockets
`Most launch vehicles utilize a rocket assembly with multiple different
`
`“stages,” commonly referred to as a “multistage rocket.” The concept has been
`
`used since the 1500s, when Johann Schmidlap, a German fireworks manufacturer,
`
`designed a “step rocket” to propel his fireworks to higher altitudes by strapping a
`
`smaller rocket atop a larger one. The larger rocket ignited first and carried the
`
`fireworks into the air. When the large rocket exhausted its fuel, the smaller rocket
`
`detached and ignited, carrying the fireworks to even higher altitudes using the
`
`smaller rocket’s own fuel. (Ex. 1009 at 27.)
`
`Modern “multi-stage” rockets use precisely the same approach for the same
`
`simple reason as Schmidlap’s “step rocket”: by shedding the mass of the used-up
`
`“booster” stage(s) along the way, the rocket is able to carry heavier payloads
`
`farther. To date, all successful orbital launch vehicles have employed multiple
`
`rocket stages because “[t]he weight of the rocket, including the engines, fuel and
`
`payload, is too large for current propulsion systems to get into orbit in one stage.”
`
`(Id.)
`
` Each rocket stage typically “contains its own propellant, engines,
`
`instrumentation and airframe, so that it can function independently.” (Id.) The
`
`first stage is responsible for lifting the payload and all other stages off the surface
`
`of the Earth. (Id. at 27-28.) “Usually, the first stage burns for only a couple of
`
`minutes. After it has used all of its propellant, the empty propellant tank, engine,
`
`
`
`7
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`

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`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US
`
`instrumentation and airframe are just dead weight and are jettisoned and usually
`
`
`
`return to Earth.” (Id. at 28.) The next stage then ignites and carries the payload
`
`and any remaining stage(s) even higher. As of 2008, rockets with up to five stages
`
`had been developed and launched. (Id.)
`
`D. Reusable Spacecraft and “Reusable Launch Vehicles” (RLVs)
`Traveling to space has always been an expensive proposition, and there has
`
`long been an interest in developing launch vehicles that can be partially or
`
`completely reused. (See Kaplan Decl. ¶ 23.) By the 1970s, the expense of relying
`
`on expendable launch vehicles to reach space led to the Space Shuttle program.
`
`(Id.) Even with the partially reusable Space Shuttle, the cost to reach space
`
`remained staggeringly expensive. (Kaplan Decl. ¶ 24.)
`
`By the late-1970s, industry recognized that the need for reusability also
`
`extended to booster stages. As explained in U.S. Patent No. 5,927,653 to George
`
`E. Mueller et al. (“Mueller ‘653”) [Ex. 1005], filed in 1996, “[o]ne of the most
`
`significant problems facing industry with respect to satellite deployment is the
`
`extremely high cost to transport the satellite to a desired orbit.” (Ex. 1005 at 1:29-
`
`31.) Mueller ‘653 reported that launching an unmanned satellite into orbit in 1996
`
`could cost from $40 million to $200 million, depending on the type of rocket
`
`required. (Id. at 1:31-35.) Mueller and others recognized that substantial cost
`
`savings could be realized by reusing booster stages. (Kaplan Decl. ¶ 25.) Mueller
`
`
`
`8
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`

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`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US
`
`‘653 therefore disclosed “a reliable, reusable and cost-effective system for
`
`
`
`deployment of payloads to low Earth orbit.” (Ex. 1005 at 2:23-26 (emphasis
`
`added).)
`
`These concerns were echoed in U.S. Patent No. 5,873,549 to Jeffrey G. Lane
`
`et al. (“Lane”) [Ex. 1004], also filed in 1996. Lane describes a reusable single
`
`stage to orbit (“SSTO”) launch vehicle. SSTO vehicles “are designed to perform
`
`their intended operation and return to earth without jettisoning any portions of the
`
`vehicle.” (Ex. 1004 at 1:12-16.) Lane and Mueller ‘653 confirm that by at least
`
`1996, industry had recognized and responded to the need for reusable launch
`
`vehicles, which provide cost savings over prior techniques that rely on single-use
`
`rockets. (Kaplan Decl. ¶¶ 25-26.)
`
`Sea Landing of Reusable Launch Vehicles
`
`E.
`The industry also recognized a need for reusable launch vehicles that could
`
`land at sea. The advantages of landing a reusable launch vehicle at sea have also
`
`long been obvious and straightforward to persons of ordinary skill in the art.
`
`Landing a launch vehicle or launch vehicle component at sea reduces the risk of
`
`accidental loss of life or property in the event of a vehicle malfunction or crash.
`
`(Kaplan Decl. ¶ 34.) It also simplifies down-range landing of boosters, which are
`
`typically launched from coastal launch sites, by eliminating the need for the
`
`
`
`9
`
`

`
`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US
`
`boosters to substantially change their trajectory to reach a particular location on
`
`
`
`land, thereby minimizing their expenditure of propellant. (See Kaplan Decl. ¶ 32.)
`
`For example, throughout the prosecution of the ‘321 patent, the claims were
`
`rejected over U.S. Patent No. 8,047,472 to Vance D. Brand et al. (“Brand”) [Ex.
`
`1010], which disclosed a “reusable launch system” in which the lower stage
`
`“descends to touchdown on a barge in the ocean” (id. at 5:41-42).
`
`A similar technique was described in a 1998 publication by Yoshiyuki
`
`Ishijima et al., “Re-entry and Terminal Guidance for Vertical-Landing TSTO
`
`(Two-Stage to Orbit),” AAIA Pub. No. 98-4120 (“Ishijima”) [Ex. 1003]. Ishijima
`
`explains that “the research about Reusable Launch Vehicles (RLV) is becoming
`
`more active, because they have the potential to reduce the cost of space
`
`transportation.” (Ex. 1003 at 192.) Ishijima discloses a TSTO system in which the
`
`first stage “is recovered and transferred
`
`to the launch site on a large tanker or
`
`pontoon,” as shown in Figure 1 of
`
`Ishijima shown at the right. (Id. at 192,
`
`193 (Fig. 1).) Ishijima explains that
`
`“[i]n order to land in a limited area such
`
`as a tanker on the sea, the re-entry and
`
`
`
`10
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`

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`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US
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`terminal guidance should be accurate and robust.” (Id. at 192.)
`
`
`
`V.
`
`SUMMARY OF THE CLAIMED SUBJECT MATTER
`A. The Specification of the ‘321 Patent
`The reusable launch vehicle techniques described in Section IV above were
`
`known to persons of ordinary skill in the art by at least the late 1990s, but this fact
`
`went largely unnoticed by the patent owner during the original prosecution of the
`
`‘321 patent. The Background portion of the ‘321 patent pays lip service to the
`
`existence of prior art reusable launch vehicles (RLVs), but does not describe them
`
`in any detail. (‘321 patent at 1:60-62.) Nor does the specification identify any
`
`specific drawback of existing RLVs that the alleged invention seeks to address.
`
`(Id.)
`
`The ‘321 patent instead attempts to lay claim over the technique described
`
`by Ishijima in 1998 of landing a reusable space launch vehicle on a “sea-going
`
`platform,” such as a “free-floating, ocean-going barge” or other vessel. (‘321
`
`patent at 5:14-20.) The basic technique disclosed in the specification of the ‘321
`
`patent is shown in Fig. 1 of the patent:
`
`
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`11
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`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US
`
`
`
`
`
`
`‘321 patent, Fig. 1
`Fig. 1, above, shows “a flight profile of a reusable launch vehicle that
`
`performs a vertical powered landing on a sea-going platform in accordance with an
`
`embodiment of the disclosure.” (Id. at 3:10-13.) The left side of Fig. 1 shows a
`
`launch vehicle (100) situated on a “coastal or other land-based launch site 140.”
`
`(‘321 patent at 3:13-15, 3:42-43.) The launch vehicle (100) includes “a first or
`
`booster stage” (110) and “a second or upper stage” (130). (Id. at 3:13-15.) The
`
`right side of Fig. 1 shows a “sea-going platform” (150) that may be located “a
`
`hundred or more miles downrange from the coastal launch site 140.” (Id. at 4:13-
`
`15.)
`
`The specification explains that the launch vehicle (100) “takes off from a
`
`coastal or other land-based launch site 140 and then turns out over an ocean 102.”
`
`
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`12
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`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US
`
`(Id. at 3:42-44.) After the booster stage (110) shuts off at high altitude, it
`
`
`
`“separates from the upper stage 130 and continues along a ballistic trajectory.” (Id.
`
`at 3:64-66.) The booster stage (110) then reorients itself into a “tail first” position
`
`and then moves toward the sea-going platform (150). (Id. at 4:3-6.)
`
`In order to land the booster stage (110) on the sea-going platform (150), the
`
`booster stage “restarts the booster engines 116 to slow its descent.” (Id. at 4:51-
`
`55.) “The booster stage 110 then performs a vertical, powered landing on the
`
`platform 150 at low speed.” (Id. at 4:55-57.)
`
`The specification does not provide any detailed description of how to land
`
`the booster stage (110) at sea. In fact, the specification admits that details
`
`associated with “launching and landing space launch vehicles” are “well-known,”
`
`and therefore not set forth in the specification “to avoid unnecessarily obscuring
`
`the various embodiments of the disclosure.” (Id. at 2:32-37.)
`
`Summary of the Relevant Prosecution History
`
`B.
`Throughout prosecution, the claims were repeatedly rejected over the Brand
`
`patent, which, as noted previously, disclosed a reusable launch system in which the
`
`lower stage lands on a barge in the ocean. (See Ex. 1010 at 5:41-42.)
`
`The patent owner did not dispute that Brand disclosed the use of a reusable
`
`launch vehicle that could land on a sea-going platform. It instead argued that
`
`Brand discloses an “air-breathing” booster and not a rocket. (Ex. 1002 at 191-94.)
`
`
`
`13
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`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US
`
`The difference between an air-breathing engine and a rocket would have been
`
`
`
`plainly obvious to one of ordinary skill in the art considering not only that Brand
`
`disclosed both types of engines, but also that the ‘321 patent itself describes an
`
`embodiment in which jet engines are attached to the booster to perform vertical
`
`landing maneuvers.
`
` (‘321 patent at 5:1-13.)
`
` The Examiner, however,
`
`subsequently allowed the claims, reasoning that Brand did not teach “vertically
`
`landing the space launch vehicle . . . while providing thrust from at least one or
`
`more rocket engines . . . [because] Brand specifically teaches away from the use of
`
`rocket engines in the booster stage.” (Ex. 1002 at 12-13.) The ‘321 patent
`
`subsequently issued on March 25, 2014.
`
`C. The Claims of the ‘321 Patent
`The three independent claims addressed in this Petition, claims 1, 8, and 13,
`
`purport to recite methods for landing a space launch vehicle tail-first on a floating
`
`platform. All claims recite substantially the same steps of launching a space
`
`vehicle, reorienting it to a tail-first position after launch, and then landing on a
`
`floating platform. Representative claim 1 recites in full:
`
`1.
`
`[a]
`
`A method for operating a space launch vehicle, the method
`comprising:
`launching the space vehicle from earth in a nose-first orientation,
`wherein launching the space launch vehicle includes igniting one or
`more rocket engines on the space launch vehicle;
`
`
`
`14
`
`

`
`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US
`
`
`[b]
`
`[c]
`[d]
`
`
`
`reorienting the space launch vehicle to a tail-first orientation after
`launch;
`positioning a landing structure in a body of water; and
`vertically landing the space launch vehicle on the landing structure
`in the body of water in the tail-first orientation while providing
`thrust from at least one of the one or more rocket engines.
`
`(‘321 patent at 8:59-9:4 (Claim 1) (bracketed notations (e.g., “[a],” “[b],” etc.)
`
`added to facilitate easier identification of the specific claim limitations in this
`
`Petition).)
`
`The other independent method claims addressed in this Petition, i.e. claims 8
`
`and 13, merely add detail about how the rocket is powered; they add nothing of
`
`patentable significance, as shown in Part VII below. All of the other claims
`
`addressed in this Petition are dependent claims that add nothing of patentable
`
`significance.
`
`VI. CLAIM CONSTRUCTION UNDER 37 C.F.R. § 42.104(B)(3)
`A claim subject to inter partes review must be given its “broadest reasonable
`
`construction in light of the specification of the patent in which it appears.” 37
`
`C.F.R. § 42.100(b). As the Federal Circuit has recognized, the “broadest
`
`reasonable construction” standard is different from the manner in which the scope
`
`
`
`15
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`

`
`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US
`
`of a claim is determined in litigation.1 (See In re Swanson, 540 F.3d 1368, 1377-
`
`
`
`78 (Fed. Cir. 2008).) Petitioner accordingly requests that the Board adopt the
`
`broadest reasonable construction of each challenged claim. For claim terms not
`
`addressed below, Petitioner has applied the plain and ordinary meaning of those
`
`terms.
`
`“Space Launch Vehicle”
`
`A.
`The term “space launch vehicle” is recited in independent claim 1 as the
`
`vehicle that is launched and then landed. The specification uses this term to refer
`
`to a device used to carry a payload into space. (‘321 patent at 1:49-50 (“Rocket
`
`powered launch vehicles have been used for many years to carry human and non-
`
`human payloads into space.”).) This is consistent with the understood meaning of
`
`“launch vehicle” to persons of ordinary skill in the art. (Kaplan Decl. ¶ 56; see
`
`also Ex. 1009 at 30 (“The launch vehicle is the rocket, including all of the stages,
`
`that is used to launch a payload into space.”).) Petitioner accordingly requests that
`
`
`1 Petitioner’s proposed constructions in Section VI are based on the broadest
`
`reasonable construction in light of the specification. See 37 C.F.R. § 42.100(b);
`
`M.P.E.P. § 2111. Petitioner does not concede that those constructions would be
`
`appropriate in litigation or any other proceeding that applies a different standard
`
`governing claim construction. See In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989).
`
`
`
`16
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`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US
`
`the Board find that the broadest reasonable construction of “space launch vehicle”
`
`
`
`is “a device used to carry a payload into space.”
`
`“Nose-First Orientation” and “Tail-First Orientation”
`
`B.
`The terms “nose-first orientation” and “tail-first orientation” appear in each
`
`independent claim to describe the positioning of the “space launch vehicle” or
`
`“booster stage” at different phases of operation.
`
`The specification explains that “the booster stage 110 [Fig. 1] can reenter the
`
`atmosphere nose-first, and then reorient to a tail-first orientation just prior to
`
`landing.” (‘321 patent at 4:6-8.) The specification further explains that a “tail-first
`
`orientation” exists when “the aft end [of the booster stage] is pointing in the
`
`direction of motion.” (Id. at 4:4-5.) The specification acknowledges that this is
`
`not a constant state because the booster may rotate off-axis, requiring efforts to
`
`stabilize the booster in a tail-first orientation. (Id. at 4:32-37.) The specification
`
`also notes that adjustments to the glide path are needed to adjust for movement of
`
`the landing platform in the water, further indicating that the booster may not
`
`always proceed precisely in the direction of motion. (See, e.g., id. at 7:1-23.)
`
`Accordingly, Petitioner respectfully submits that the broadest reasonable
`
`construction of “tail-first orientation” is “a position in which the vehicle tail is
`
`pointed substantially in the direction of motion.” (Kaplan Decl. ¶ 61.) The related
`
`
`
`17
`
`

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